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TMI Blog2013 (2) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... India ('AAI' for short) a body constituted by an Act of Parliament under the Ministry of Civil Aviation, Government of India for its alleged anti-competitive action. The other party complained against the Central Vigilance Commission which is the Chief vigilance body of the Government of India entrusted with the tasks of framing and endorsing guidelines on procurement governance for the government body. 3. It was alleged in the information that AAI had floated a notice for inviting the tender for procurement and installation of tyre killers and Bollards by its notice dated 15.5.2010. However, the said notice was cancelled on the same day by AAI without citing any reasons. Another notice came to be floated being a tender notice on 13.9.2010. This was also for procurement and installation of bollards in respect of the five airports named in the notice. Significantly enough in the first notice the AAI had not indicated the airports in respect of which it was floating the tender nor was its requirement about particular type of bollards specifically stated. In the later notice, however, the AAI clarified that the bollards were required for five airports and they were to be electro Hyd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-qualification for citing the following reasons :- 1. The work experience of supply and installation of ROLM EPABX's executed with M/s. Air India, Mumbai and work experience of SITC of Train and Describe System / Train Management System with the Western Railway was not a work similar to the system of bollards. 2. The necessary certificates were not submitted. 3. It is alleged in the information that AAI being one of the large public sector undertaking was abusing its dominant position by specifying a particular technology i.e. Hydraulic Bollards in its procurement tender invitation notice for bollards and therefore creating technical entry barriers for other type of bollards like one which were being produced by the informant company. It was also alleged that imposing unfair and discriminatory conditions in the tender invitation notice by creating a regulatory, financial, high capital cost, marketing and technical entry barriers in the bollards purchase market the AAI has contravened section 4(2)(a)(i) of the Act. Some other alleged irregularities were also reported. 4. The CCI firstly held that there was no evidence available on record or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the first notice any other type of bollard manufacturer could have taken part in the tender process. Because of the specification provided in the second notice inviting tender for Hydraulic Bollards the competition was left only amongst the hydraulic bollards manufacturer. Thus the other equally efficient technologies such as motorized electro mechanism bollards were excluded even from taking part in it. This according to Shri Sharma was a classic example of creating entry barrier. Shri Sharma also urged that the appellant was one of the top most companies dealing in the motorized electro mechanism bollards. He also tries to urge that the technology adopted by the appellant was the better technology than the one required in the second tender notice. He also pointed out that though the number of letters were sent to the Bureau of Civil Aviation Security and more particularly to the Additional Commissioner Shri Rajendra Dhoke, all these letters were not even taken note of and the Bureau of Civil Aviation security remained sinisterly silent. Shri Sharma has given voluminous record regarding the appellant company and also its strong points. He, therefore, urged that in limiting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AAI has in any way breached any of the provision of the Section 4. The AAI was acting in its capacity as a consumer and as argued by the representative for the AAI it was equipped with technical committee to advise the AAI for a purchase of particular type of bollards. According to Shri Sharma, the other type of bollards were superior to Hydraulic operated bollards. We are afraid we cannot go in to the question of superiority of one type or the other. That is neither our task nor our jurisdiction. The only question we have to consider is that in requiring a particular type of bollard whether AAI created any entry barrier for other manufacturer. The plain and simple answer to this question is obviously in negative. Every consumer knows its own needs and requirements and is free to purchase the same. Accordingly, merely because a consumer requires a particular type of commodity does not mean that by inviting tenders for that commodity the entry barriers are created for any other commodities. If we take such a view then there would be no element of choice left for a consumer in any market. Shri Sharma was not able to counter the argument of the representative of AAI that its require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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